{ Brandon Buskey, Deputy Director, Criminal Law Reform Project, ACLU - PDF document

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides The Need and the Path For Reform { Brandon Buskey, Deputy Director, Criminal Law Reform Project, ACLU 1 Overview  Why do we need bail reform?  How can we achieve pretrial reform?  What role should risk assessments play, if any? 2 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides State v. Gregory { What can we learn from Washington’s experience with the death penalty? 3  Death Penalty  Pretrial Detention  Tries to identify  Predicts “worst of the “worst of the worst” worst” risks of danger  Most serious  Most serious decision consequence after prior to conviction conviction The Connections 4 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides History of Capital Punishment  1972: Supreme Court strikes down death penalty as  Racist & Arbitrary  1974: Supreme Court reinstates,  Today, fewer people on death row, but still  Racist & Abitrary  See Gregory 5 Are we at similar cross roads in bail?  Trying to replace a system that is  Arbitrary: majority of felony defendants detained because of bail  Discriminatory: African Americans  Receive higher bail  More likely to be detained on bail 6 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides Can Washington avoid Gregory in its bail system? 7 Why reform: human costs 8 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides Harms of Pretrial Detention  48 hours in jail can lead to lose of:  Employment,  Housing,  Child custody 9 Harms of Pretrial Detention  Causal effect on case outcomes  4X’s more likely to be sentenced to jail  3X’s more likely to receive prison  3X’s longer jail sentence  2X’s longer prison sentence  25% more likely to plead guilty 10 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides  Increases recidivism  More likely to be arrested following release {  Increases failure to appear  Less likely to return to court Pretrial Detention Causes What We Want to Prevent 11 The Link to Mass Incarceration  Nationally:  1 of 5 people incarcerated are pretrial  2 of 3 people in a local jail are pretrial  Washington  7 ‐ 8 of 10 people in jail are pretrial  Places like King, Pierce, and Spokane counties 12 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides We can safely increase release  Only 1.9% of Felony Defendants re ‐ arrested for new violent offense  Baughman and McIntyre, Predicting Violence , Tex. L. Rev. 13 And…The Law Requires More Pretrial Release 14 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides United States v. Salerno { “In our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” 15 The Presumption of Innocence { “It is better that ten guilty persons escape than that one innocent suffer.” Blackstone 16 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides Risk Tolerance and the Right to Pretrial Release 17 What Risks Matter?  Flight  Stack v. Boyle  Dangerousness  US v. Salerno 18 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides { { False Negatives False Positives  Mislabeling  Mislabeling someone as “not someone as “risky” risky” What Errors Matter? 19  (Presumption of Innocence) + (Right to Pretrial Release) = Greater Concern for False Positives? The Law and Risk Tolerance 20 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides { { Standard for Guilt Standard for Release  Issue: What you did  Issue: What you might do  Proof Beyond a Reasonable Doubt  Detention only if “necessary”  Err on the side of acquittal  Err on the side of release Back to the Presumption 21 The Challenge { Judges Worry More About False Negatives 22 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides “Deadly shooting of Dallas officer reignites bail reform debate” Always Know a False ( ‐ ) 23 Never Know a False (+) 24 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides Pretrial feedback is biased toward detention; { Over time, detention will naturally increase The Ratchet Effect 25 “People of color in the United States, particularly young black men, are often assumed to be guilty and dangerous…. As a consequence of this country’s failure to address effectively its legacy of racial inequality, this presumption of guilt and the history that created it have significantly shaped every institution in American society, especially our criminal justice system.”  ‐ Bryan Stevenson Roots in the Legacy 26 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides { How do we avoid reproducing this legacy pretrial? History and Risk Tolerance 27 Cultivating a Culture of Release { The way to equitable reform 28 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides The Salerno Roadmap  Limit Detention to  Those charged with serious offenses  Whose risk cannot be managed  Everyone Else Goes Home ,  Pretrial supports; or  Release conditions 29  Personal recognizance  Court reminders  Voluntary treatment referrals  Unsecured bond  Capable defense counsel How to do it 30 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides  “Overconditioning”  Increases failure  Conditions that are not evidence ‐ based  Drug testing  GPS monitoring  Secured money bail How Not to do it 31  Unsecured and other alternatives are more effective  Denies or delays release  Ability to pay is inadequate:  People overestimate ability to pay  “Second look” is rare and too late Seriously, avoid secured money bail 32 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides Let’s Talk Risk Assessments { The Rundown 33 In a Culture of Release, do you need them? { 3 Critical Issues 34 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides  Be clear about your goals  Increase release?  Reduce bias?  Be sure you can do it “right”  Necessary data and capacity  Public input  Be sure you’re meeting goals  No “Zombie Predictions”: Evaluate pre ‐ and post ‐ implementation data  Feedback from stakeholders At a minimum 35 ACLU and over 100 civil rights groups oppose RAI’s 36 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides  Flight and Violence are rare; rare events are inherently hard to measure  RAI’s don’t measure flight or violence, but:  Risk of single failure to appear  Risk of a single new arrest Can’t inform a detention decision. 37  What is the failure rate for PSA violence flag?  Answer: 8.9% Is “High Risk” Really High? 38 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides  High risk doesn’t mean strict conditions  E.g., High FTA risk better addressed by:  Court reminders?  Transportation?  Treatment? Can’t inform proper release conditions 39 What can they do? { What can they not do? 40 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides Measure GROUP Risk  Not individual risk!  Think: Profile  Ex: Person A looks like Group 2  May help with sorting decisions  E.g., release w/o hearing 41 Risk Assessments Are Not “Evidence Based” 42 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides  Evidence ‐ based: robust studies showing something works  Being based on data is not “evidence based”  We don’t yet know if risk assessments “work”  More accurate than judges?  Less biased than judges?  Improve judicial decision ‐ making? Assessing Risk Assessment Megan Stevenson 43 Race and Risk Assessments { Another struggle with the Legacy 44 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides Here’s the thing….  “There is no such thing as a race neutral risk assessment.”  Prof. Sandra Mayson 45 Assume the past • will carry into the future { But what do we • make of the past? Risk Assessments Reflect 46 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides Thought Experiment { What would a risk assessment tell you? 47 Alabama, 1865 48 February 28, 2020

Defender Initiative 10th Annual Conference Session 3 - MJC Bail REform Pannel BB slides Ferguson, 2014 49 Back to Risk Tolerance { The Pro Publica Debate 50 February 28, 2020